I can't tell you how many people contact me looking to trademark their t-shirt and apparel brand. Then they show me five or more of their "brands", which are just designs on the clothing. That's when I realize that it's not always clear what's a brand and what isn't.
Trademark registration protects the brand source of products or services. Brands are identifiers in the marketplace that allow consumers to distinguish the source of one product from another. Think about how you're able to distinguish a handbag made from Louis Vuitton versus one made by Coach. Well, the same goes for clothing and other apparel. If you want to know who made a particular shirt or dress, you'd most likely look at the tag displayed in the collar, the hang tag or in some cases the branding on the packaging material. This information tells you everything you need to know to go directly to the source to purchase the same shirt or dress.
But what about the design on the front of a t-shirt, hat or other apparel?
While in some cases a brand may put their name or logo on the front of their apparel, in an obvious display of the brand source. However, the mere fact that your logo is featured on the front (or side or back) of your apparel, does not mean that you are entitled to trademark protection. It must act as the brand source, which means it's displayed on the tags or packing material as explained above. It still stands that names and logos that are not used as a brand are not eligible for trademark protection. USPTO views logos or words that just appear as a graphic design on apparel as “merely ornamental”.
While, you can't trademark each individual t-shirt or apparel design, you can register your graphic design with the US Copyright office to protect it from being copied by competitors.
Another thing to consider:
There is a big difference between the brand that is the source of the clothing and apparel and the source of the physical or online retail store that sells the clothing and apparel. That is the difference between Class 25 (clothing and apparel) and Class 35 (online retail store).
To be eligible for Class 25 trademark protection, your brand must be the source for the actual clothing you sell. That is, your brand produces the clothing or the clothing is being produced exclusively for your brand. This is where the brand must be displayed in the collar tag, hang tag or packaging material.
Class 35 is different. Brands in this class have a physical or online store in which they sell products or services. If your brand is a retail store that only sells a variety of clothing brands, then you are only eligible for protection for the retail store as a source to purchase the variety of brands you sell (Class 35). However, if your brand not only produces the clothing and apparel, but has a retail store where you sell the products as well, then you can seek registration for the retail store and the clothing you sell.
An easy way to understand this is to note the difference between a retail clothing store like Nordstrom’s which sells a variety of designer brand clothes and a designer store like Calvin Klein which only sells Calvin Klein brand clothing.
So let's recap:
Brand of Clothing must appear on collar tags, hang tags and/or packaging material to be eligible for trademark registration. It can also be copyright protected if it's also displayed on the actual clothing.
A Graphic Design on clothing and other apparel is not a brand if it's just a design on the front of the clothing or apparel. This is eligible for copyright protection only.
If you produce and sell your own brand of clothing and other apparel, then you can seek trademark registration in Class 25 for the apparel themselves and Class 35 for the physical or online retail store. Note that the retail store can sell both your brand of clothing as well as others.
However, if you have an online and/or physical retail store that only sells the clothing and apparel of other brands, then you can seek trademark protection for the retail store (Class 35) but not the clothing and apparel themselves (Class 25).
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